Citation Nr: 0625602
Decision Date: 08/18/06 Archive Date: 08/24/06
DOCKET NO. 04-37 813 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
ATTORNEY FOR THE BOARD
Mark Vichich, Associate Counsel
INTRODUCTION
The veteran served in the Philippine Commonwealth Army from
September 1941 to August 1942, the Regular Philippine Army
from November 1945 to February 1946, and was a prisoner of
war (POW) from April 1942 to August 1942. The appellant is
the veteran's widow.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 2003 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Manila, the Republic of the Philippines.
The RO originally denied service connection for the cause of
the veteran's death in a rating decision dated in September
1994. However, VA amended provisions of 38 C.F.R. § 3.309
(c)(2), effective October 7, 2004, pertaining to POWs. 69
Fed. Reg. 60083-01 (October 7, 2004). Under the new
regulation, the presence of edema during captivity is no
longer required to establish a presumption of service
connection for atherosclerotic heart disease. 38 C.F.R. §
3.309 (c)(2) (2005).
Under appropriate circumstances, an intervening change in
applicable law may entitle a claimant to receive
consideration of a claim de novo, or as a "new" claim, even
though the claim is based on essentially the same facts as
those in a previously adjudicated claim. Routen v. West, 142
F.3d 1434, 1441-42 (Fed. Cir. 1998); Spencer v. Brown, 17
F.3d 368, 372 (Fed. Cir. 1994), aff'g 4 Vet. App. 283, 288-89
(1993). Promulgation of the VA regulation regarding service
connection for atherosclerotic heart disease for POWs
following the prior RO decision provides a "new basis of
entitlement or benefit" to which de novo adjudication is not
precluded. Id. Thus, the Board will consider the
appellant's instant claim as a new claim, rather than as an
attempt to reopen a previously denied claim. Further, the
Board's review will be limited to a possible grant of service
connection on the basis of the new regulation only.
FINDINGS OF FACT
1. The appellant has been notified of the evidence necessary
to substantiate her claim, and all relevant evidence
necessary for an equitable disposition of this appeal has
been obtained.
2. The veteran was a POW from April 1942 to August 1942.
3. The Certificate of Death indicates that the veteran died
on May [redacted], 1994. The immediate cause of death was cardio-
pulmonary arrest; antecedent cause of death was acute
respiratory failure; and underlying causes of death were
pulmonary tuberculosis, moderately-advanced, activity
undetermined; pneumonia, bilateral; chronic obstructive
pulmonary disease; and pulmonary emphysema. Other
significant conditions contributing to death were
arteriosclerotic heart disease, cardiovascular disease, and
anteroseptal ischemia.
4. At the time of the veteran's death, the veteran suffered
from atherosclerotic heart disease; a condition for which
service connection for the veteran is presumed.
5. Atherosclerotic heart disease was a contributory cause of
the veteran's death.
CONCLUSION OF LAW
The cause of the veteran's death was due to a disability that
is presumed to have been incurred therein. 38 U.S.C.A. §§
1110, 1131, 1310, 5103, 5103A (West 2002 & Supp. 2005); 38
C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.312 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000, Pub. L. No. 106-
475, 114 Stat. 2096 (2000) (VCAA) redefines the obligations
of VA with respect to the duty to assist and includes an
enhanced duty to notify a claimant as to the information and
medical or lay evidence necessary to substantiate a claim for
VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp.
2005); 38 C.F.R. § 3.159 (2005). VA is required to provide
the claimant with notice of what information or evidence is
to be provided by the Secretary and what information or
evidence is to be provided by the claimant with respect to
the information and evidence necessary to substantiate the
claim for VA benefits. Quartuccio v. Principi, 16 Vet. App.
183, 187 (2002). VA is also required to request that the
claimant provide any evidence in the claimant's possession
that pertains to the claim. 38 C.F.R. § 3.159(b) (2005).
VCAA notice must be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim. Pelegrini v. Principi, 18 Vet. App. 112, 120
(2004).
In Dingess/Hartman v. Nicholson, Nos. 01-1917 & 02-1506, the
Court of Appeals for Veterans Claims held that VCAA notice
requirements of 38 U.S.C.A. § 5103(a) (West 2002 & Supp.
2005) and 38 C.F.R. § 3.159(b) (2005) apply to all five
elements of a "service connection" claim. These five
elements include (1) veteran status; (2) existence of a
disability; (3) a connection between the veteran's service
and the disability; (4) degree of disability; and (5)
effective date of the disability. Id. Thus, upon receipt of
an application for a service-connection claim, section
5103(a) and § 3.159(b) require VA to review the information
and the evidence presented with the claim and to provide the
claimant with notice of what information and evidence not
previously provided, if any, will assist in substantiating or
is necessary to substantiate the elements of the claim as
reasonably contemplated by the application. Id. This
includes notice that an effective date for the award of
benefits will be assigned if service connection is awarded.
Id.
In correspondence dated in February 2004 and November 2004,
the RO provided notice under the VCAA. In these notices,
however, the RO failed to address the elements of the degree
of disability or the effective date of disability. Despite
the inadequate notice provided to the appellant on these two
elements, the Board finds no prejudice to the veteran in
proceeding with the issuance of a final decision. See
Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (providing that
where the Board addresses a question that has not been
addressed by the agency of original jurisdiction, the Board
must consider whether the veteran has been prejudiced
thereby). As noted, the Board is granting the appellant's
claim for service connection for the cause of the veteran's
death. Therefore, the RO will have the opportunity to
address the issues of the appropriate disability rating and
effective date of the award at the time it implements the
Board's decision. At this time, any defect is harmless
error.
Evidence
The Certificate of Death indicated that the veteran died on
May [redacted], 1994. The Certificate of Death was signed by Dr. R.M.
Dr. R.M. listed the immediate cause of death as cardio-
pulmonary arrest; antecedent cause of death as acute
respiratory failure; and underlying causes of death as
pulmonary tuberculosis, moderately-advanced, activity
undetermined; pneumonia, bilateral; chronic obstructive
pulmonary disease; and pulmonary emphysema. Dr. R.M. listed
arteriosclerotic heart disease, cardiovascular disease, and
anteroseptal ischemia as other significant conditions
contributing to death.
At the time of the veteran's death, service connection was
not in effect for any disability.
The veteran's service medical records are negative for
complaints, treatment, or diagnoses of heart disease.
In a treatment note from Penafrancia x-ray clinic, dated in
May 1993, Dr. M. noted findings of pulmonary emphysema,
bilateral; bronchiectasis, bilateral; pulmonary tuberculosis
with cystic changes, right; and atheromatous aorta.
Treatment records from VMMC Quezon City, dated from May 1989
to January 1994 showed that the veteran received treatment
for the following conditions: chronic pulmonary obstructive
disease, pulmonary tuberculosis, bronchitis, pulmonary
emphysema, hyperuricemia and bronchiectasis. In a
radiographic report, dated in January 1994, Dr. A.D. stated
that x-rays confirmed the presence of chronic obstructive
pulmonary disease, pulmonary tuberculosis, minimal; chronic
bronchitis; pulmonary emphysema, and atheromatous aorta. Dr.
A.D. noted that the heart and other chest structures were
unremarkable.
A certification letter from VMMC Quezon City, dated in August
1993, indicated that the veteran was admitted to that
facility from July 1993 to August 1993. In the letter, Dr.
B.C. stated that the veteran had diagnoses of pulmonary
tuberculosis, moderately-advanced, activity undetermined and
chronic obstructive pulmonary disease secondary to pulmonary
emphysema with probable bronchiectasis, bases with secondary
bacterial infection. Dr. B.C. indicated that the
certification was issued at the request of the veteran.
In the appellant's VA Form 9, dated in October 2004, the
appellant stated that as a POW, the veteran became seriously
ill from cerebral malaria, dysentery, and pulmonary
tuberculosis. The appellant stated that the veteran received
treatment for "PTB, MA, bilateral; COPD with the
bronchiectasis; and atheromatous aorta" in 1961. The
appellant stated that the veteran was taken to Penafrancia
Clinic, Naga City, in May 1993, and the findings reflected
"pulmonary emphysema, bilateral, etc."
In a letter from VMMC, Quezon City, dated in February 2005,
H.C., an administrator at that facility, responded to the
RO's request for a terminal record of confinement for the
veteran. In the letter, H.C. stated that records at that
facility did not show that the veteran died there, and
therefore no terminal record of confinement could be
provided.
In a letter from VMMC Quezon City, dated in May 2005, H.C.,
an administrator at that facility, responded to the RO's
second request for a terminal record of confinement for the
veteran. In the letter, H.C. stated that the veteran was
dead on arrival (DOA) on May [redacted], 1994. H.C. explained that
this was not recorded in the DOA logbook but was logged in
the consultation record book instead. H.C. stated that
patients who are dead on arrival do not have clinical
records; therefore the entry from the consultation record
book was the only record available.
In a handwritten treatment note from VMMC Quezon City, dated
May [redacted], 1994, the day of the veteran's death, Dr. A.S.
recorded that the veteran had difficulty breathing the day
before. Dr. A.S. wrote "BP = 90/60" and "PR = 72" in the
note. The doctor's assessment was chronic obstructive
pulmonary disease, secondary to pulmonary emphysema;
pulmonary tuberculosis, moderately-advanced, activity
undetermined, bronchiectasis probable. In the upper left
hand corner of the note appeared "DOA 7:15 a.m."
Legal Criteria
When a veteran dies of a service-connected disability, the
veteran's surviving spouse is eligible for dependency and
indemnity compensation. 38 U.S.C.A.
§ 1310 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.5(a), 3.312
(2005). The death of a veteran will be considered as having
been due to a service-connected disability where the evidence
establishes that such disability was either the principal or
a contributory cause of death. 38 C.F.R. § 3.312(a) (2005).
A principal cause of death is one which, singularly or
jointly with some other condition, was the immediate or
underlying cause of death, or was etiologically related
thereto. 38 C.F.R. § 3.312(b) (2005). A contributory cause
of death is one which contributed substantially or materially
to death, combined to cause death, and aided or lent
assistance to the production of death. 38 C.F.R. § 3.312(c)
(2005). It is not sufficient to show that it casually shared
in producing death, but rather it must be shown that there
was a causal connection. Id.
Service connection will be granted if it is shown that a
veteran has a disability resulting from an injury or disease
contracted in the line of duty, or for aggravation of a
preexisting injury suffered or disease contracted in active
military service. 38 U.S.C.A. § 1131 (West 2002 & Supp.
2005); 38 C.F.R. § 3.303 (2005). Service connection may also
be granted for any disease diagnosed after discharge, when
all the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d) (2005). This burden typically cannot be
met by lay testimony because lay persons are not competent to
offer medical opinions. Espiritu v. Derwinski, 2 Vet. App.
492, 494-95 (1992).
When the veteran is a former POW, certain diseases, if
manifest to a degree of disability of 10 percent or more at
any time after discharge, shall be presumed to be service-
connected even though there is no record of such disease
during service. 38 U.S.C.A. §§ 1112, 1113 (West 2002); 38
C.F.R. 3.307, 3.309 (2005). Included among such diseases are
atherosclerotic heart disease or hypertensive vascular
disease (including hypertensive heart disease) and their
complications (including myocardial infarction, congestive
heart failure, and arrhythmia). Id. In the Interim Final
Rule revising section 3.309, VA described atherosclerotic
heart disease as a term used to refer to a heart disease
involving progressive narrowing and hardening of the arteries
over time and encompasses ischemic heart disease, coronary
artery disease, and other diseases that may be described by a
more specific diagnosis. 69 Fed. Reg. 6003-01 (October 7,
2004).
When an approximate balance of positive and negative evidence
regarding the merits of a claim exist, the benefit of the
doubt in resolving each such issue shall be given to the
claimant. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp.
2005).
Analysis
The Board finds that service connection is warranted on a
presumptive basis for atherosclerotic heart disease. 38
C.F.R. § 3.309(c) (2005). Although the medical evidence does
not show a long history of treatment for atherosclerotic
heart disease, objective findings of atheromatous aorta have
been documented on at least two occasions prior to the
veteran's death. As noted, the veteran was a POW and
pursuant to section 3.309(c), service connection for this
disability is presumed. Id.
The Board also finds that the atherosclerotic heart disease
contributed to the cause of the veteran's death. In making
this finding, the Board recognizes that there are
inconsistencies in the evidence surrounding the circumstances
of the veteran's death. First, although "DOA 7:30 a.m."
appeared on the treatment note dated the day the veteran
died, his vitals were recorded. Second, the veteran's status
upon arrival was logged in the consultation record book and
not the DOA logbook, which presumably would have been routine
procedure for a DOA. Third, the physician who prepared the
death certificate listed time of death as 11:00 a.m., which
was nearly four hours after the veteran allegedly arrived
"DOA." This physician was also not the one who prepared
the treatment note upon the veteran's arrival earlier in the
same day.
Despite the inconsistencies in the record, the benefit-of-
the-doubt doctrine warrants a finding that the
atherosclerotic heart disease caused the veteran's death. Of
particular relevance is that arteriosclerotic heart disease
and anteroseptal ischemia were listed on the death
certificate as significant conditions contributing to death.
Although these were two of many contributing factors listed
on the death certificate, that they were considered
"significant conditions contributing to death" is
sufficient medical evidence that a causal connection exists
between the service-connected disability and the veteran's
death. 38 C.F.R. § 3.312(c) (2005). Resolving the benefit-
of-the-doubt in favor of the appellant, the Board concludes
that atherosclerotic heart disease and its complications
caused the veteran's death.
ORDER
Service connection for the cause of the veteran's death is
granted.
____________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs